Abstract

This Article identifies a key doctrinal shift in courts' treatment of public employees' First Amendment claims - a shift that imperils the public's interest in transparent government as well as the free speech rights of more than twenty million government workers. In the past, courts interpreted the First Amendment to permit governmental discipline of public employee speech on matters of public interest only when such speech undermined the governmental employer's interest in efficiently providing public services. In contrast, courts now increasingly focus on - and defer to - government's claim to control its workers' expression to protect its own speech.

More specifically, courts increasingly permit government to control its employees' expression while at work, characterizing such speech as the government's own for which it has paid with a salary. This trend frustrates a meaningful commitment to republican government by allowing government officials to punish, and thus deter, whistleblowing and other valuable on-the-job speech that would otherwise facilitate the public's ability to hold the government politically accountable for its choices. Courts also increasingly consider government workers to be speaking "as employees" even when away from work, deferring to government's assertion that its association with employees who engage in certain off-duty expression undermines its credibility in communicating its own contrary views. Implicit in courts' reasoning is the premise that a public entity's employment relationship with an individual who engages in certain expression communicates a substantive message to the public that the government is entitled to control. Courts' unfettered deference to such claims permits government agencies to fire workers for any unpopular or controversial off-duty speech to which the public might object, potentially enforcing an expressive orthodoxy as a condition of public employment.

To be sure, government speech is as valuable as it is inevitable. But taken together, these trends lead to the rejection of government workers' First Amendment claims in a growing number of cases that undermine workers' free speech rights as well as the public's interest in transparent government. More careful attention to what it is that government seeks to communicate - and whether that message is actually impaired by employee speech - can help us capture and accommodate government's expressive interests while providing greater protection for workers. This Article thus proposes a less deferential approach to assessing government's expressive claims, exploring both categorical and contextual frameworks for identifying with greater precision that comparatively small universe of worker speech that actually threatens government's legitimate speech.

Keywords: First Amendment, government speech, public employees, civil rights